California Criminal Lawyer FAQs

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Q. Last month I was arrested for something I did not do. I was trying to explain this to the police officer and I refused to let him handcuff me. He then threw me to the ground, handcuffed me and also charged me with resisting arrest. Can't I refuse to be arrested if the police are wrong?

A. No. Before 1957, the general rule was that if an arrest was unlawful, a police officer was not properly doing their duty, and therefore no crime was committed by a person who resisted with reasonable force. Also, no crime was committed by anybody who helped that person resist. That is not the rule now!

In 1957, the legislature passed Penal Code §834a which provides that if a person knows or reasonably should know that they are being arrested, that person cannot use force to resist that arrest even if the arrest is unlawful. Under the old rule, the courts determined that people were finding a ready excuse to resist or escape and this refusal to be arrested inevitably led to violence, riots, etc. Further, recent court decisions have established that there is also no right to use force to resist an unlawful detention by a police officer. A detention generally occurs when a police officer makes contact with a person and by the officer's behavior, positioning or words leads a person to believe that they are not free to leave. The courts have concluded that since an arrest is a greater infringement on your freedom than a detention, if there is no right to resist an arrest then there is no right to resist a detention as well.

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Q. Because I have been convicted of a felony, I am not allowed to possess or use any firearms (guns, rifles, etc.) If I have my conviction expunged (Penal Code 1203.4), can I possess firearms again?

A. No. It is illegal for any person convicted of a felony to possess or use a firearm for the rest of their life. An expungement or a dismissal of conviction does not restore the right to possess a firearm or ammunition to someone who has a felony conviction. Although some language of the applicable statute (PC 1203.4) refers only to concealable firearms (handguns, pistols, revolvers, etc.) the First District Court of Appeals has recently ruled that the statute's language does not allow an expungement to restore a convicted felon's right to possess any firearms (concealable or not). The only way to restore this right is to receive a pardon from the Governor's Office. A pardon is not available to someone who has been convicted of a felony involving the use of a dangerous weapon.

Other circumstances which can cause a lifetime firearm prohibition, include a conviction of an assault with a firearm, discharge of a weapon at an inhabited dwelling or brandishing a firearm. In addition, anyone who has suffered two or more misdemeanor convictions for brandishing a firearm is precluded from owning a firearm for life.

A 10-year firearm prohibition can result from a conviction of a misdemeanor crime (a crime whose maximum jail sentence is one year). These crimes include, but are not limited to, threatening to injure a school or public employee, state official or judge; carrying a deadly weapon to prevent a witness from testifying; threatening force or violence because of assistance to the prosecution; taking a firearm from a police officer engaged in lawful duties; bringing a firearm or weapon into any State or public building, State office or on public school grounds; various assault crimes, etc.

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